Posted
by
CmdrTacoon Monday April 30, 2007 @11:40AM
from the any-lawyers-on-the-plane dept.

ajakk writes "The U.S. Supreme Court, in a unanimous opinion, overturned the decades old test for determine whether a patent is obvious. The Court ruled that the Court had looked at obviousness in a "narrow, rigid manner." This should allow patents to be more easily invalidated because they are obvious."

Until expressed as a com-puter-readable "copy," e.g., on a CD-ROM, Windows--indeed anysoftware detached from an activating medium--remains uncom-binable. It cannot be inserted into a CD-ROM drive or downloadedfrom the Internet; it cannot be installed or executed on a computer.Abstract software code is an idea without physical embodiment, andas such, it does not match 271(f)'s categorization: "components"amenable to "combination." Windows abstracted from a tangible copyno doubt is information--a detailed set of instructions--and thusmight be compared to a blueprint (or anything else containing designinformation). A blueprint may contain precise instructions for theconstruction and combination of the components of a patented device,but it is not itself a combinable component.

What exactly is this "Windows in the abstract" separate from "a copy of Windows"? Do they mean that if I copy a software program that incorporates a patented invention, until that copy is converted into a deliverable form it's actually not an implementation of the patented invention. So, for example, software distributed as source code can't violate a patent until it's compiled?

Microsoft may have laid up a whole heap of trouble for themselves here.

The US is relying on IP to carry the current standard of living forward. The US does not export or make much of anything any more. IP is a growing percentage of the US exports and "ownership". The US can not maintain its economy on hard physical goods any longer and IP is the only alternative means of money producing items.

If you want serious change, you have to understand the motivation that put many of these laws into place and keeping these laws tough. That is why there is resistence. Take any company with a strong IP portfolio, what do they actually produce and would they have the income they did if IP was not involved? See why there is resistance to change?

Interesting... it sounds like they are saying that code itself - i.e. the stuff you get on a printout, on a t-shirt, anything that isn't part of an executable - is not patentable because it is a set of instructions, rather than a device.

If that's true, all I can say is... Wow. All software patents will basically have to be revisited, because on the face of it, it sounds like software cannot be patented anymore.

Am I missing something here? Or can I start the happy software-patents-are-dead dance?

I'm opposed to software patents, but not for reasons of obviousness. Rather, given that the purpose of patents is to spur inventors to invent, disclose the workings of their inventions, to bring those inventions to market, and to have the least burden on the public in terms of what they can't do, I think that software patents are inappropriate. There are other incentives to do these things besides the incentive of a patent. In the case of software and business methods, I think those other incentives are quite strong; strong enough that those fields would continue to thrive without patents (as they did until fairly recently, when patents came onto the scene in those fields) and that they'd actually do better, in fact, without the chilling effect on the market that the patents cause.

If someday those other incentives diminish, we might want to have patents there again. Certainly we should keep an eye on this. But for now, I think that we'd see much more invention, disclosure, and bringing-to-market without the burden of patents than we have now.

Does this argument satisfy you? Better still, would you agree with it?

Software can't violate a patent until it's executed on a computer because software is not patentable. What they patent is the functionality of the software as part of a computing device (have fun with the analogies). Unlike copyright law, it is not the distributor that is liable for infringement but the end-user.

I have no qualms with software patents per-se. However a better way to handle them I believe, would be to say, that provided the provider recieves no financial recompensation direct (i.e. sales) or indirect (i.e. support), that a software patent cannot be used against a software provider.

That doesn't negate any/copyright/ restrictions (i.e. you can simply steal someone's software, it doesn't leagalize piracy), but for example, a sub-pixel rendering patent could not be used against a free (as in beer) piece of sub-pixel rendering software. Now if a company got ahold of this software, and tried selling it or a set of software containing it - then that company could be held responsible, and could be required to pay royalties.

The idea is - if it can be created/distributed at such "minimal" effort that no cost is required, then it the patent is of questionable novelty.

I'm of the opinion that software patents are not necessarily horribly bad or wrong, at least not moreso than any other kind of patent, but it's just that the way they have been implemented currently is so far from ideal that we'd be better off eliminating patent protection from software entirely than sticking with it.

What has traditionally been patentable are particular methods of solving problems. E.g., the sewing machine we're familiar with today (with two interlocking threads, one in a bobbin, etc.) is one way of solving the "how do we attach two pieces of material together" problem. It's (or rather, was) a novel solution to the problem, it was non-obvious, and it was particular. That's an example of a pretty good, justifiable patent. (Also because it's not easy to protect by other means -- once you see a sewing machine and take one apart, you realize immediately how it works and it's trivial to re-implement it, but if you hadn't ever seen one it's not obvious that two running threads is the way to do it, hence why it took so long to be invented.)

I'm not sure that there is a good argument for preventing people from patenting the solutions to problems, where the form of the solution happens to be microcode, in the same way that the form of the solution to the sewing-machine problem was milled pieces of steel.

But the problem arises when judges and patent examiners aren't skilled and selective about what's patentable. It's much easier, with software-based inventions, to get overbroad patents that negatively impact invention; rather than patenting a particular solution, what gets patented are entire classes of mathematical functions, or all possible software implementations (solutions) of a given problem. That would be like getting a patent, not on a particular sewing machine design, but on all sewing machines generally, or even "any machine for attaching two or more pieces of fabric together."

The problem, in my opinion, with software patents isn't with the fact that they're software -- in my mind, software ought to be patented, and it ought not be protected under Copyright (unless we're willing to define it completely as "speech" with all the freedoms that entails) -- but that they're typically of very poor quality, shoddily researched, and overbroad.

For this reason, I think the Europeans have done a good thing in just avoiding the issue entirely, because the cost of overbroad patents on innovation is far worse than no patents of a particular type at all. (I think this is trivially obvious but there are a lot of historical examples where overbroad patents have been problematic and basically stymied development that was otherwise ongoing -- the old internal-combustion patents are a prime example.)

We have the legal framework to deal with software, but unfortunately we just haven't used it correctly, and until we're willing to do it correctly -- and that means we're going to need to apply a lot more resources to the task of ensuring that patents are novel, non-obvious, narrow in scope, and deserving of protection -- they're a lot more trouble than they're worth.

Are you bored by legal technicalities? Would you rather be watching a 90 mph police car chase that ends in a cataclysmic crash?? Well the SCOTUS has delivered just what you want in their other big decision today: SCOTT v. HARRIS.

I still don't understand what makes algorithms and software OBVIOUSLY not patentable.

Some algorithms (like RSA) are really smart and clever and do deserve patent protection (the length of protection can and should be discussed). But bloody silly algorithms like 'one click' and all the avalanche of pathetic patents on well-used and obvious programming techniques should rightly now be shown the door.

Um, I think you misunderstand the patent system. Patents don't trump each other. If you come up with something that is based on one or more previous patents, while you could previously patent that new combination, you were not free from the patents on what you were improving upon.

So all that happens is that those combinations are no longer patentable. But that's not to stop inovation. Most consumer product makers like Nintendo and Apple have some amount of Patents that they license in order to make their products. Both of those companies as the seller of products constantly refine and improve upon them. This just means that if there is an obvious way for nintendo to improve the DS and come
out with the next form factor, they won't have tlo pay someone cause they patented that combination.

It might hurt some companies that ride the bleeding edge without making any attempt to compete on quality or price. But the real peopel this will hurt are the patent equivelent of domain name squatters. People who have no intention of ever releasing a product, and will never produce a prototype that's even remotely market ready, but will just wiat for some one to try the combination and then sue them to get bought out or get a fat settlement.

To add further to your call for sanity, it should not be possible to hold a patent for something that you are not actually producing.

After all, the only reason for being granted a patent is so that you can benefit from a degree of protection while you are creating the corresponding product and building up its early market. If you are not producing it, then you deserve no protection from other producers.

And worse, if you hold a patent and do not produce the item but merely hold other producers to ransom for royalties with it, then you're just a patent troll and a completely negative contributer to progress --- you should be penalized, not rewarded.

To implement that, patents should expire automatically at the end of an ever-shortening period to reflect the march of progress. A short extension might be possible, once, as long as you can show that you're actively working on your product but that it's taking longer than expected. But no more than once, because you'd be preventing other potential producers from doing a better job than you are.

And after this single short extension, you should compete on a level footing with others. If that's not adequate, then don't patent your invention in the first place, but keep it a trade secret as long as you can --- that is, until it gets reverse-engineered. Either way, exclusive reign to an invention is not in the interest of society, and needs no extended support.

Software is typed up stuff, written in a language or languages, and as such, is more akin to written books or articles or say like musical scores, and should only be allowed copyright, not patents.

The test for what can be protected under copyright is not "typed up stuff." Recipes, for example, cannot be copyrighted. Recipe books can be copyrighted -- which might include copious explanatory text, photos, and all sorts of other things -- but a list of ingredients and steps of how to put an individual meal together cannot. Neither can an instruction manual explaining how to build a model kit.

Recipes can, however, be patented. Mull that one over for a while.

Oh yeah... and you will observe that patents are themselves nothing more than "typed up stuff."

First, while I'm not entirely sure your first paragraph's point, I can guess that you are upset that the entire idea of the FOO algorithm can be protected. This isn't an entirely coherent with respect to any of the intellectual property regimes anywhere. First, to the extent that a patent may apply, a patent would cover it only to the extent that it is a "process, machine, manufacture, or composition." The problem with respect to computer algorithms is that they are almost always reducible to a machine. This makes sense and why it's difficult to object to software patents on these grounds. Indeed, many of the most innovative non-software patents are essentially algorithms reduced to machines. While the Microsoft v. AT&T case didn't come out and say, "software as software is unpatentable" it was mentioned by both sides at oral arguments.

Second, to the extent that it relates to copyrights, copyright only protects a particular implementation of the algorithm. That is, the exact code that performs the algorithm as fixed by the author. Even then to the extent the algorithm dictates the implementation, there may not be much copyrightable material.

Third, disclosure only requires enough information to enable the claims. Essentially, enough disclosure to tell the fictional person having ordinary skill in the art the steps to get from A to B. A patent would never asked to disclose source code because, frankly, that's irrelevant. The fact that the steps might amount to a million lines of code really isn't the point either.

Fourth, litigation over software patents would be considerably easier if there really was a "large body of prior art." The fact of the matter is that there isn't. At least there isn't relative to other more developed areas.

Finally, it'll be interesting to see if the KSR opinion changes your guys about the "trivial or obvious combinations." I posted a similar comment at patently-o.com. To the extent that a software patent really is just taking known processes from the real world and adding a computer (and achieving no additional benefit), those patents might be history. However, that might also be a very easy issue to get around (find a synergy--efficiency, speed, accuracy, etc.).

I just read the syllabus (technically not legally binding; the actual opinion is, but there's almost no effective difference) of the opinion, and the SCOTUS basically shot down decades of Court of Appeals for the Federal Circuit and predecessor Court of Customs and Patent Appeals case law, bringing back the previously SCOTUS decided Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 17-18 as the solid basis for determining obviousness. Assuming the CAFC doesn't try to weasel out of this like they originally did around Graham [cornell.edu] ( or around Benson [cornell.edu] for software) this will have a potentially huge impact in the scope of claims issued by the PTO, or if a patent even issues in the first place. Much will depend on how PTO management interprets the decision and what guidelines are given to examiners, at least in short run until some appeals hit the CAFC.

Once again the SCOTUS has reigned in the CAFC which, as the most frequent appellate decider of patent law, gets to decide what the patent law is for years at a time, with only the relatively infrequent SCOTUS decisions permitting correction. Today is one of those infrequent occurances.

If I may use an example... would a Post-It-Note be patentable under this ruling, or would it be easily invalidated by this ruling? I have heard companies use the analogy of paper and glue are obvious but putting them together is patentable to defend their patents which to me (an engineer) seems obvious.

Disclaimer: no I am not seeking free legal advice on a Post-It-Note style invention. I don't work in a field even remotely related to paper products. My company has a corporate legal department and also uses external patent attorney's. However, talking to them is sometimes frustrating because my engineering logical view often times can't process their legal opinions.

Well, given that a patent is a right to prohibit other people from practicing it, how can someone have a natural right to stop others from doing something which they do have a natural right to do? Remember, the patent holder is the equivalent of China in your analogy, and the people against whom the patent is used are the people of China.

how can you come back and say that you don't have the right to the product of your work

You do not have a natural right to stop other people from using your invention. But they might give you a right over them which permits you to stop them. They're only likely to do so, however, if it is in their interest.

Next you say you don't share the philosophy that all things should be for the public good, but you say that that is the purpose of patents.

And since patents are not 'all things' then there's not much of a problem with that. Just because patents are necessarily utilitarian doesn't mean that everything has to be.

Of course they are. Unfortunately, we aren't talking in terms of absolutes of no incentive or incentive, but rather how much. So yes there would still be incentive, but no, if we have patents there are even more incentives.

Basic economics tells you that more incentive creates more production

Only if your basic economist doesn't look at the big picture.

Let us imagine that we have a factory which makes widgets. Let's say that you work for a widget factory, making widgets, at $10 for each widget you build. The factory could presumably incentivize you to make more widgets by paying you $20 for each widget. After all, you want that extra money, right? Well, what if they paid you $10 million per widget? Is that a million times more incentive for you? Are you going to work a million times harder and faster?

No, you're probably going to stop making widgets for 40 hours a day 50 weeks a year and instead make one widget every year or two. Money is more valuable to people who haven't got it than it is to people who do. A very poor person cannot afford to pass on a job. A very rich person can sit around unemployed and still live comfortably. Each additional dollar has less utility than the one before it. We have progressive tax codes for similar reasons.

Meanwhile, the widget company is going to go out of business very rapidly because their costs are going to far outstrip their revenues.

So no, while we are dealing with an issue of how much incentive to add to the varying levels of natural incentive already present, adding more incentive is not a good plan. First, because excessive incentive accomplishes very little as opposed to a modest incentive, which accomplishes a lot. Second, because the public has to bear the cost of this incentive, and since they want the greatest benefit to them, that means the most benefit for them with the least cost -- and thus the least incentive that yields the greatest benefit.

So if you could get 90% of the invention for 50% of the cost by halving incentives, then that would probably be a good idea. It's nearly as good as your current situation and far cheaper.

In extreme cases, patents can even have a negative incentive effect. This is because, like many monopolists, patent holders are rent seeking. They will try to expand the scope and duration of their patent so that they can drive off or swallow up their competitors. In those circumstances, competitors often prefer to direct their efforts elsewhere than to bother.